Opinion
No. 7272
Opinion Filed February 5, 1918.
Appeal and Error — Failure to File Brief — Reversal.
First paragraph of the syllabus in Phillips v. Rogers et al., 30 Okla. 99, 118 P. 371, adopted herein.
(Syllabus by Galbraith, C.)Error from District Court, Garvin County; R. McMillan, Judge.
Action by H.E. Galvin, administrator, against Geo. R. Lynn. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial.
Shirk Danner, for paintiff in error.
Blanton Andrew, for defendant in error.
This was an action on a promissory note for $700, with interest. The plaintiff alleges that he was a bona fide holder of the note, and that same had been assigned to him in due course and for value. The defendant answered, admitting the execution of the note, but defended on the ground that the plaintiff was not a holder in due course, and that there was a failure of consideration and a breach of warranty executed and delivered at the same time the note was executed and as a part of the transaction.
There was a trial to the court and a jury, and a verdict rendered for the defendant. Judgment was entered against the plaintiff for costs; to review that judgment an appeal has been perfected to this court.
The cause was regularly submitted on May 22, 1917, and the plaintiff in error was allowed 3 days thereafter in which to serve and file brief, and the defendant 20 days after service to reply. The brief of the plaintiff in error has been served and filed, but the defendant in error has failed to file brief, or to give any excuse for his failure to do so. An examination of the brief of the plaintiff in error, in connection with the record, discloses that the authorities cited in the brief reasonably tend to support the assignments of error. Therefore, under the established rule of this jurisdiction, the judgment appealed from should be reversed, and the cause remanded for a new trial. Phillips v. Rogers et al., 30 Okla. 99, 118 P. 371, and cases therein cited.
It is therefore ordered that the judgment be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.